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Prosecutors fear evidence could help Nemnich

Mesa County prosecutors want to argue in a secret court motion why they believe a new item of evidence, potentially favorable for a man accused of killing two people in 1975, shouldn’t be turned over to defense attorneys.

Assistant District Attorney Rich Tuttle didn’t identify the new item in question in a motion he filed June 15.

“With respect to this item ... there are other factors which militate against disclosure of same to the defense,” Tuttle wrote in the district attorney’s motion in the case against 65-year-old Jerry Nemnich.

The motion asks District Judge Brian Flynn to allow prosecutors to file another motion, under seal, asking the judge to determine whether the item should be provided to Nemnich’s defense. The prosecution cites case law that it says allows the judge to privately review items of evidence and make a determination whether it should be shared.

“It is out of an abundance of caution that the people now desire to submit the item to the court for a discovery determination,” Tuttle wrote.

As of Thursday morning, Nemnich’s defense had not responded to the prosecution’s request.

Nemnich has pleaded not guilty on separate counts of first-degree murder in the July 1975 stabbing deaths of Linda Benson, 24, and her daughter, Kelley, who were slain in their Grand Junction apartment.

Nemnich, an over-the-road trucker who lived in Longmont, was arrested in April 2009, largely on the strength of DNA evidence found at the apartment, which prosecutors allege placed Nemnich there.

Nemnich’s trial had been scheduled to take place earlier this year, but it was continued in February after prosecutors said an additional round of DNA tests was completed. Although the results haven’t been aired, District Attorney Pete Hautzinger wrote in a court filing the results were “highly beneficial” to the prosecution’s case.